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(b) A State shall submit these reports an NOTE: This section is based on a provision nually, unless the Secretary allows less fre in the General Education Provisions Act quent reporting.

(GEPA). Section 427 of the Department of (c) However, the Secretary may, under 34 Education Organization Act (DEOA), 20 CFR 74.7 (Special grant or subgrant condi U.S.C. 3487, provides that except to the extions) or 34 CFR 74.72(e) (Grantee accounting tent inconsistent with the DEOA, the GEPA systems), require a State to report more fre "shall apply to functions transferred by this quently than annually.

Act to the extent applicable on the day pre

ceding the effective date of this Act." Al(Approved by the Office of Management and

though standardized nomenclature is used in Budget under control number 1880-0513)

this section to reflect the creation of the De(Authority: 20 U.S.C. 1221-3(a)(1), 2831(a)) partment of Education, there is no intent to

extend the coverage of the GEPA beyond (45 FR 22517, Apr. 3, 1980. Redesignated at 45

that authorized under Section 427 or other FR 77368, Nov. 21, 1980, and amended at 53 FR

applicable law. 49143, Dec. 9, 1988)

(Authority: 20 U.S.C. 1232f(a)) $76.722 A subgrantee makes reports

(45 FR 22517, Apr. 3, 1980. Redesignated at 45 required by the State.

FR 77368, Nov. 21, 1980, and amended at 45 FR A State may require a subgrantee to 86296, Dec. 30, 1980; 55 FR 14816, Apr. 18, 1990) furnish reports that the State needs to

PRIVACY carry out its responsibilities under the program.

876.740 Protection of and access to (Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a))

student records; student rights in

research, experimental programs, RECORDS

and testing.

(a) Most records on present or past $76.730 Records related to grant funds.

students are subject to the require

ments of Section 438 of GEPA and its A State and a subgrantee shall keep implementing regulations under 34 records that fully show:

CFR part 99. (Section 438 is the Family (a) The amount of funds under the Educational Rights and Privacy Act of grant or subgrant;

1974.) (b) How the State or subgrantee uses (b) Under most programs administhe funds;

tered by the Secretary, research, ex(c) The total cost of the project;

perimentation, and testing are subject * (d) The share of that cost provided to the requirements of section 439 of from other sources; and

GEPA and its implementing regula(e) Other records to facilitate an ef tions at 34 CFR part 98. fective audit.

(Authority: 20 U.S.C. 122e-3(a)(1), 1232g, 1232h, (Approved by the Office of Management and 2831(a), 2974(b), and 3474) Budget under control number 1880-0513)

(45 FR 22517, Apr. 3, 1980. Redesignated at 45 (Authority: 20 U.S.C. 12321)

FR 77368, Nov. 21, 1980, and amended at 57 FR (45 FR 22517, Apr. 3, 1980. Redesignated at 45 30342, July 8, 1992) FR 77368, Nov. 21, 1980, and amended at 53 FR 49143, Dec. 6, 1988)

USE OF FUNDS BY STATES AND

SUBGRANTEES $76.731 Records related to compliance.

876.760 More than one program may

assist a single activity. A State and a subgrantee shall keep records to show its compliance with

A State or a subgrantee may use program requirements.

funds under more than one program to

support different parts of the same (Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a)) project if the State or subgrantee 876.734 Record retention period.

meets the following conditions:

(a) The State or subgrantee complies A State and a subgrantee shall retain with the requirements of each program records for five years after completion with respect to the part of the project of the activity for which they use grant assisted with funds under that proor subgrant funds.

gram.

157–133 046-7

(b) The State or subgrantee has an U.S.C. 3487, provides that except to the exaccounting system that permits identi tent inconsistent with the DEOA, the GEPA fication of the costs paid for under

"shall apply to functions transferred by this each program.

Act to the extent applicable on the day pre

ceding the effective date of this Act." Al(Authority: 20 U.S.C. 1221e-3(a)(1)d, 2831(a), though standardized nomenclature is used in 2974(b))

this section to reflect the creation of the De

partment of Education, there is no intent to 876.761 Federal funds may pay 100 extend the coverage of the GEPA beyond percent of cost.

that authorized under Section 427 or other A State or a subgrantee may use pro

applicable law. gram funds to pay up to 100 percent of

(Authority: 20 U.S.C. 1231b-2) the cost of a project if:

(45 FR 22517, Apr. 3, 1980. Redesignated at 45 (a) The State or subgrantee is not re FR 77368, Nov. 21, 1980, and amended at 45 FR quired to match the funds; and

86296, Dec. 30, 1980; 57 FR 30342, July 8, 1992) (b) The project can be assisted under the authorizing statute and imple- Subpart H-What Procedures Does menting regulations for the program.

the Secretary Use to Get (Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a))

Compliance?
STATE ADMINISTRATIVE

876.900 Waiver of regulations prohibRESPONSIBILITIES

ited. 876.770 A State shall have procedures

(a) No official, agent, or employee of to ensure compliance.

ED may waive any regulation that ap Each State shall have procedures for

plies to a Department program unless reviewing and approving applications

the regulation specifically provide that for subgrants and amendments to those

it may be waived. applications, for providing technical

(b) No act or failure to act by an offiassistance, for evaluating projects, and

cial, agent, or employee of ED can affor performing other administrative re

fect the authority of the Secretary to sponsibilities the State has determined

enforce regulations. are necessary to ensure compliance

(Authority: 43 Dec. Comp. Gen. 31(1963)) with applicable statutes and regulations.

$76.901 Office of Administrative Law

Judges. (Authority: 20 U.S.C. 1221e-3(a)(1) and 3474)

(a) The Office of Administrative Law (57 FR 30342, July 8, 1992)

Judges, established under Part E of 876.783 State educational agency ac

GEPA, has the following functions: tion-subgrantee's opportunity for

(1) Recovery of funds hearings under a hearing

section 452 of GEPA. (a) A subgrantee may request a hear

(2) Withholding hearings under sec

tion 455 of GEPA. ing if it alleges that any of the following actions by the State educational

(3) Cease and desist hearings under

section 456 of GEPA. agency violated a State or Federal statute or regulation:

(4) Any other proceeding designated (1) Ordering, in accordance with a

by the Secretary under section 451 of final State audit resolution determina

GEPA. tion, the repayment of misspent or

(b) The regulations of the Office of misapplied Federal funds; or

Administrative Law Judges are at 34 (2) Terminating further assistance CFR part 81. for an approved project.

(Authority: 20 U.S.C. 1234) (b) The procedures in $76.401(d)(2)-(7) apply to any request for a hearing

(57 FR 30342, July 8, 1992) under this section.

876.902 Judicial review. NOTE: This section is based on a provision in the General Education Provisions Act

After a hearing by the Secretary, a (GEPA). Section 427 of the Department of

State is usually entitled-generally by Education Organization Act (DEOA), 20 the statute that required the hearing

to judicial review of the Secretary's decision. (Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a))

8 76.910 Cooperation with audits.

A grantee or subgrantee shall cooperate with the Secretary and the Comptroller General of the United States or any of their authorized representatives in the conduct of audits authorized by Federal law. This cooperation includes access without unreasonable restrictions to records and personnel of the grantee or subgrantee for the purpose of obtaining relevant information. (Authority: 5 U.S.C. Appendix 3, Sections 4(a)(1), 4(b)(1)(A), and 6(a)(1); 20 U.S.C. 1221e3(a)(1), 12321) (54 FR 21776, May 19, 1989)

PART 77-DEFINITIONS THAT APPLY

TO DEPARTMENT REGULATIONS

$77.1 Definitions that apply to all De

partment programs. (a) (Reserved)

(b) Unless a statute or regulation provides otherwise, the following definitions in part 74 or 80 of this title apply to the regulations in title 34 of the Code of Federal Regulations. The section of part 74 or 80 that contains the definition is given in parentheses. Award (874.2) Contract (includes definition of “Sub

contract") ($74.2) ($80.3)
Equipment ($74.2) (8 80.3)
Grant ($ 80.3)
Personal property ($74.2)
Project period (874.2)
Real property ($ 74.2) (8 80.3)
Recipient (874.2)
Supplies (874.2) (80.3)

(c) Unless a statute or regulation provides otherwise, the following definitions also apply to the regulations in this title:

Acquisition means taking ownership of property, receiving the property as a gift, entering into a lease-purchase arrangement, or leasing the property. The term includes processing, delivery, and installation of property.

Applicant means a party requesting a grant or subgrant under a program of the Department.

Application means a request for a grant or subgrant under a program of the Department.

Budget means that recipient's financial plan for carrying out the project or program.

Budget period means an interval of time into which a project period is divided for budgetary purposes.

Department means the U.S. Department of Education.

Director of the Institute of Musuem Services means the Director of the Institute of Museum Services or an officer or employee of the Institute of Museum Services acting for the Director under a delegation of authority.

Director of the National Institute of Education means the Director of the National Institute of Education or an officer or employee of the National Institute of Education acting for the Director under a delegation of authority.

ED means the U.S. Department of Education.

EDGAR means the Education Department General Administrative Regulations (34 CFR parts 74, 75, 76, 77, 79, 80, 81, 82, 85, and 86.)

Elementary school means a day or residential school that provides elementary education, as determined under State law.

Facilities means one or more structures in one or more locations.

Fiscal year means the Federal fiscal year-a period beginning on October 1 and ending on the following September 30.

GEPA means The General Education Provisions Act.

Grant period means the period for which funds have been awarded.

Grantee means the legal entity other than a Government subject to 34 CFR Part 80 to which a grant is awarded and which is accountable to the Federal Government for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the award document. For example, a grant award document may name as the grantee one school or campus of a university. In this case, the granting agency usually intends, or actually intends, that the named component assume primary or sole responsibility for administering the grant-assisted

or

as

project or program. Nevertheless, the Nonprofit, as applied to an agency, ornaming of a component of a legal en- ganization, or institution, means that tity as the grantee in a grant award it is owned and operated by one or document shall not be construed as re- more corporations associations lieving the whole legal entity from ac- whose net earnings do not benefit, and countability to the Federal Govern- cannot lawfully benefit, any private ment for the use of the funds provided. shareholder or entity. (This definition is not intended to af- Nonpublic, as applied to an agency, fect the eligibility provision of grant organization, or institution, means programs in which eligibility is limited

that the agency, organization, or instito organizations which may be only tution is nonprofit and is not under components of a legal entity.) The Federal or public supervision or conterm "grantee” does not include any trol. secondary recipients such

Preschool means the educational level subgrantees, contractors, etc., who

from a child's birth to the time at may receive funds from a grantee pur

which the State provides elementary suant to a grant. The definition of

education. grantee" for State, local, and tribal

Private, as applied to an agency, orgagovernments is contained in 34 CFR

nization, or institution, means that it 80.3.

is not under Federal or public superLocal educational agency means:

vision or control. (a) A public board of education or

Project means the activity described other public authority legally con

in an application. stituted within a State for either ad

Public, as applied to an agency, orgaministrative control of or direction of,

nization, or institution, means that the or to perform service functions for,

agency, organization, or institution is public elementary or secondary schools

under the administrative supervision in:

or control of a government other than (1) A city, county, township, school

the Federal Government. district, or other political subdivision of a State; or

Secondary school means a day or resi

dential school that provides secondary (2) Such combination of school dis

education as determined under State tricts or counties a State recognizes as

law. In the absence of State law, the an administrative agency for its public

Secretary may determine, with respect elementary or secondary schools; or

to that State, whether the term in(b) Any other public institution or

cludes education beyond the twelfth agency that has administrative control

grade. and direction of a public elementary or

Secretary means the Secretary of the secondary school.

Department of Education or an official (c) As used in 34 CFR parts 400, 408,

or employee of the Department acting 525, 526 and 527 (vocational education

for the Secretary under a delegation of programs), the term also includes any

authority. other public institution or agency that has administrative control and direc

Service function, with respect to a

local educational agency: tion of a vocational education program.

(a) Means an educational service that Minor remodeling means minor alter

is performed by a legal entity—such as ations in a previously completed build

an intermediate agency: ing. The term also includes the exten

(1) (i) Whose jurisdiction does not exsion of utility lines, such as water and tend to the whole State; and electricity, from points beyond the (ii) That is authorized to provide conconfines of the space in which the sultative, advisory, or educational minor remodeling is undertaken but services to public elementary or secwithin the confines of the previously ondary schools; or completed building. The term does not (2) That has regulatory functions include building construction, over agencies having administrative stuctural alterations to buildings, control or direction of public elemenbuilding maintenance, or repairs. tary or secondary schools.

(b) The term does not include a service that is performed by a cultural or educational resource.

State means any of the 50 States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, or the Trust Territory of the Pacific Islands.

State educational agency means the State board of education or other agency or officer primarily responsible for the supervision of public elementary and secondary schools in a State. In the absence of this officer or agency, it is an officer or agency designated by the Governor or State law.

Work of art means an item that is incorporated into facilities primarily because of its aesthetic value.

79.10 How does the Secretary make efforts

to accommodate intergovernmental con

cerns? 79.11 What are the Secretary's obligations

in interstate situations? 79.12 How may a state simplify, consolidate,

or substitute federally required state

plans? 79.13 (Reserved)

AUTHORITY: 31 U.S.C. 6506; 42 U.S.C. 3334; and E.O. 12372, unless otherwise noted.

SOURCE: 48 FR 29166, June 24, 1983, unless otherwise noted.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474) [45 FR 22529, Apr. 3, 1980, as amended at 45 FR 37442, June 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, and amended at 45 FR 86298, Dec. 30, 1980; 54 FR 21776, May 19, 1989; 57 FR 30342, July 8, 1992; 59 FR 34739, July 6, 1994)

879.1 What is the purpose of these reg

ulations? (a) The regulations in this part implement Executive Order 12372, “Intergovernmental Review of Federal Programs,” issued July 14, 1982 and amended on April 8, 1983. These regulations also implement applicable provisions of Section 401 of the Intergovernmental Cooperation Act of 1968 and Section 204 of the Demonstration Cities and Metropolitan Development Act of 1966.

(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on state processes and on state, areawide, regional, and local coordination for review of proposed federal financial assistance.

(c) These regulations are intended to aid the internal management of the Department, and are not intended to create any right or benefit enforceable at law by a party against the Department or its officers. (Authority: E.O. 12372)

PART 79-INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF EDUCATION PROGRAMS AND ACTIVITIES

Sec. 79.1 What is the purpose of these regula

tions? 79.2 What definitions apply to these regula

tions? 79.3 What programs and activities of the

Department are subject to these regula

tions? 79.4 What are the Secretary's general re

sponsibilities under the Order? 79.5 What is the Secretary's obligation with

respect to federal interagency coordina

tions? 79.6 What procedures apply to the selection

of programs and activities under these

regulations? 79.7 How does the Secretary communicate

with state and local officials concerning the Department's programs and activi

ties? 79.8 How does the Secretary provide states

an opportunity to comment on proposed

federal financial assistance? 79.9 How does the Secretary receive and re

spond to comments?

$ 79.2 What definitions apply to these

regulations? Department means the U.S. Department of Education.

Order means Executive Order 12372, issued July 14, 1982, amended April 8, 1983, and titled “Intergovernmental Review of Federal Programs."

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department acting for the Secretary under a delegation of authority.

State means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the

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